1. Drugs--conspiracy to traffic in cocaine by possession--motion to dismiss--sufficiency
of evidence
The trial court did not by denying defendant's motion to dismiss at the close of the
State's evidence the charge of conspiracy to traffic in cocaine by possession, because: (1) a
reasonable juror could infer that three men riding around in a pickup truck had a relationship and
were conversing with one another; (2) there was a reasonable inference that the subject of their
conversation was a drug deal when the cocaine was found in a bag on the seat of the truck
between defendant and one of the other men; (3) a jury could reasonably infer that the driver
would not count thousands of dollars in drug money in front of defendant and the second man if
they were not involved in a drug deal, nor would there be 79.3 grams of cocaine on the seat
between the two passengers; and (4) viewed in the light most favorable to the State, there was
sufficient evidence of both a mutual implied understanding and of other incriminating
circumstances to support the elements of conspiracy and constructive possession.
2. Drugs--conspiracy to traffic in cocaine by possession--instruction--constructive
possession
The trial court did not err in a conspiracy to traffic in cocaine by possession case by
denying defendant's motion for an instruction on constructive possession, because: (1) although
the trial court initially denied defendant's request for an instruction on constructive possession at
the charge conference, the judge did include the pattern jury instruction on constructive
possession while charging the jury on the offense of trafficking by possession; and (2) the trial
court's charge on conspiracy to traffic in cocaine referred the jury to its prior instruction on
trafficking by possession.
Judge ELMORE dissenting.
Attorney General Roy Cooper, by Assistant Attorney General
Jane T. Hautin, for the State.
The Turrentine Group, P.L.L.C., by Karlene Scott-Turrentine,
for defendant-appellant.
STEELMAN, Judge.
On 16 March 2002, Montgomery County Deputy Sheriff Robert
George and Biscoe Police Officer Brant Phillips, as part of a local
drug unit, responded to an anonymous call that Romeo Meza had a
large quantity of cocaine coming into the city of Biscoe. George
and Phillips saw Meza's truck and proceeded to pull the vehicle
over for a traffic stop. Along with the driver Meza, two other
male passengers were in the cab of the pick-up truck: defendant,
seated next to the passenger door, and Prentice Southerland, seated
in between Meza and defendant. Other officers were called in to
assist with the stop.
Deputy George approached the truck on the driver's side while
Officer Phillips and Officer Phillip Chappell, also of the Biscoe
Police Department, approached the passenger's side. At the
driver's side window, Deputy George noticed that Meza had a “large
sum of cash on his lap,” and “asked Mr. Meza to step out of the
vehicle.” Deputy George testified that
[t]he money was in Mr. Meza' lap as if he was
counting. It was folded out and there was
numerous hundred-dollar bills visible. And
when I asked him to get out of the vehicle, he
tried to pick it up and put it back in his
pocket.
The amount of money in Meza's lap was approximately $2,800.00. As
Meza opened the driver's door, Deputy George observed a
semiautomatic pistol inside the door panel.
Upon seeing the gun, later determined to be loaded with a
round in the chamber, Deputy George “[i]mmediately handcuffed Mr.
Meza and indicated to the other officer there was a firearm in the
vehicle.” At that point, Meza was passed back to other officers onthe scene and Officers Phillips and Chappell, who were already at
the passenger's side of the truck, proceeded to remove defendant
and Southerland.
As defendant was “sliding out,” Deputy George saw “a plastic
bag on the front seat between Mr. Southerland's right leg and Mr.
Jenkins' left leg,” which was later determined to contain 51.5
grams of cocaine base and 27.8 grams of cocaine hydrochloride.
Defendant and Southerland were also placed into custody and taken
to the Biscoe Police Department.
Officer Chappell's testimony was consistent with that of
Deputy George: the bag was not visible when both defendant and
Southerland were in the truck, but “[a]s [defendant] was getting
out, as Sergeant Phillips was asking them to get out and as they
were getting out of the vehicle, it was laying there in the seat.”
Officer Chappell described the bag as a “clear plastic bag . . .
[that was] wrapped up . . . [and] knotted up.” Although Officer
Chappell testified he could not see into the bag, he stated that in
his experience “drugs are packaged that way.” He also testified
that while in custody at jail, Southerland attempted to dispose of
some cocaine in the toilet.
Officer Phillips testified that after he asked defendant to
step out of the car and placed him in custody, Officer Chappell
began to assist Southerland out of the car. “And before he got to
get [Southerland] out of the vehicle, he noticed a bag, which he
handed to me.” Officer Phillips testified the bag was rolled up,
not clear, and that he could not ascertain its contents until he
took them out. The bag itself was described by the forensicchemist as a “vegetable grocery style bag that . . . then [had]
three . . . other bags that were knotted little plastic bags
containing the material.”
On 27 May 2002 defendant was tried in Montgomery Superior
Court for trafficking in cocaine by possession of at least 28 grams
but less than 200 grams, trafficking in cocaine by manufacturing
(of the same amount), conspiracy to traffic in cocaine by
possession (of the same amount), and possession of cocaine.
Defendant was found guilty of conspiracy to traffic in cocaine, and
acquitted of the remaining charges. He received an active sentence
of 35 to 42 months. Defendant appeals.
At the close of the State's case, defendant made a motion to
dismiss all charges for lack of sufficient evidence. This motion
was denied. The defendant put on no evidence, and renewed his
motion to dismiss. It was also denied. Our review is limited to
the conviction for conspiracy to traffic in cocaine.
[1] In defendant's first and second assignments of error, he
argues that the trial court erred in denying his motion to dismiss
at the close of all the evidence because there was insufficient
evidence to support the charge of conspiracy to traffic in cocaine
by possession. We disagree.
In reviewing a trial court's denial of a defendant's motion to
dismiss at the close of the State's evidence, we view the evidence
in the light most favorable to the State.
State v. Sams, 148 N.C.
App. 141, 143-44, 557 S.E.2d 638, 640 (2001);
State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The State bears the
burden of proving each element of the offense charged and must showsubstantial evidence of each element. State v. Brinkley, 10 N.C.
App. 160, 161, 177 S.E.2d 727, 728 (1970).
“
Substantial evidence is evidence from which any rational trier
of fact could find the fact to be proved beyond a reasonable
doubt.” State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399
(1986).
The State may meet this burden by either direct or
circumstantial evidence. The law makes no distinction between the
weight to be accorded to direct or circumstantial evidence. State
v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390
(2000)(citation omitted).
“
In order to prove conspiracy, the State need not prove an
express agreement; evidence tending to show a mutual, implied
understanding will suffice. Nor is it necessary that the unlawful
act be completed.”
State v. Morgan 329 N.C. 654, 658, 406 S.E.2d
833, 835 (1991) (internal citations omitted).
A conspiracy may be
shown by circumstantial evidence, or by a defendant's behavior.
State v. Harris, 145 N.C. App. 570, 579, 551 S.E.2d 499, 505
(2001), disc. rev. denied, appeal dismissed 355 N.C. 218, 560
S.E.2d 146 (2002)(citation omitted)
. Conspiracy may also be
inferred from the conduct of the other parties to the conspiracy.
State v. Batchelor, 157 N.C. App. 421, 427, 579 S.E.2d 422, 427
(2003), disc. rev. denied, 357 N.C. 462, 586 S.E.2d 101
(2003)(citation omitted)
. “[P]roof of a conspiracy [is generally]
established by a number of indefinite acts, each of which, standing
alone, might have little weight, but, taken collectively, they
point unerringly to the existence of a conspiracy.” Id. (internal
quotations and citations omitted).
“
Trafficking in cocaine by possession of at least 28 grams but
not more than 200 grams of cocaine is a violation of N.C. Gen.
Stat. § 90-95(h)(3)(a). Possession of the drugs need not be
exclusive.
”
State v. Outlaw, 159 N.C. App. 423, 426, 583 S.E.2d
625, 628 (2003)(citation omitted)
.
“It is well established in
North Carolina that possession of a controlled substance may be
either actual or constructive. 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.” State v. Jackson, 103
N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)(internal citations
omitted)
.
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. . . . The fact
that a person is present in a [vehicle] where
drugs are located, nothing else appearing,
does not mean that person has constructive
possession of the drugs. . . . [T]here must be
evidence of other incriminating circumstances
to support constructive possession.
State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)
(internal citations omitted)(emphasis added).
In order to find defendant guilty of conspiracy to traffic in
cocaine in the instant case, the State must prove that defendant
entered into an agreement to traffic by possessing cocaine weighing
at least 28 grams but less than 200 grams, and intended the
agreement to be carried out at the time it was made. See State v.
Diaz, 155 N.C. App. 307, 319, 575 S.E.2d 523, 531 (2002), cert.
denied, 357 N.C. 464, 586 S.E.2d 271 (2003).
Defendant arguesthat there was insufficient evidence to support either the element
of agreement, or the element of possession.
In this matter, the defendant stipulated that the stop of the
pickup truck by the officers was valid and legal, and the amount of
cocaine is not in dispute. When the truck was stopped by the
officers, Meza was driving, Southerland was seated in the middle
and defendant was next to the passenger window. They were seated
together on the bench seat of the pickup truck. Meza had a pile of
money in his lap. When Meza exited the vehicle, there was a pistol
plainly visible in the driver's door of the truck. When defendant
exited the truck, there was a bag of drugs on the seat between
defendant and Southerland.
We hold that this evidence was sufficient to submit the charge
of conspiracy to traffic in cocaine by possession to the jury. A
reasonable juror could infer that three grown men riding around in
a pickup truck had a relationship and were conversing with one
another. With evidence tending to show that Meza was in the
process of counting thousands of dollars in cash when he was pulled
over, and that 27.8 grams of powdered cocaine, 51.5 grams of crack
cocaine and a loaded handgun were in the open cabin of the truck,
there is also a reasonable inference that the subject of their
conversation was a drug deal and not something more innocuous.
This is particularly true in light of the fact that the cocaine was
found in a bag on the seat of the truck between defendant and
Southerland.
A jury could reasonably infer that Meza would not
count thousands of dollars in drug money in front of defendant and
Southerland
if they were not involved in a drug deal, nor wouldthere be 79.3 grams of cocaine on the seat between the two
passengers. “In 'borderline' or close cases, our courts have
consistently expressed a preference for submitting issues to the
jury . . . .” Jackson, 103 N.C. App. at 244, 405 S.E.2d at 357
(internal quotations and citations omitted)(Case finding adequate
evidence to submit trafficking in cocaine and conspiracy to traffic
in cocaine to the jury on facts similar to the instant case).
Viewed in the light most favorable to the State,
there was
sufficient evidence of both a mutual, implied understanding, and
of
other incriminating circumstances to support the elements of
conspiracy and constructive possession
.
These assignments of error
are without merit.
[2] In his third assignment of error, defendant asserts that
the trial court erred in denying defendant's motion for an
instruction on constructive possession. We disagree.
“Every substantial feature of the case arising on the evidence
must be presented to the jury even without a special request for
instructions on the issue.” State v. Watson, 80 N.C. App. 103, 106,
341 S.E.2d 366, 369 (1986)(citation omitted)
.
The trial court
initially denied defendant's request for an instruction on
constructive possession at the charge conference. However, in
charging the jury on the offense of trafficking by possession, the
judge did include the pattern jury instruction on constructive
possession (NCPI Criminal 104.41). The judge's charge on
conspiracy to traffic in cocaine referred the jury to his prior
instruction on trafficking by possession. This complied withdefendant's request for an instruction on constructive possession.
This assignment of error is without merit.
NO ERROR.
Judge CALABRIA concurs.
Judge ELMORE dissents.
ELMORE, dissenting.
I must respectfully dissent from the majority opinion in this
case because I cannot hold that the State presented sufficient
evidence of conspiracy. Accordingly, I would vacate defendant's
conviction for conspiracy to traffic in cocaine by possession.
On appeal we review the evidence supporting a conviction of
conspiracy to traffic in cocaine in the light most favorable to the
State. State v. Sams, 148 N.C. App. 141, 144, 557 S.E.2d 638, 641
(2001).
A motion to dismiss is proper when the State
fails to present substantial evidence of each
element of the crime charged. See State v.
McDowell, 329 N.C. 363, 389, 407 S.E.2d 200,
214 (1991). 'Substantial evidence is evidence
from which any rational trier of fact could
find the fact to be proved beyond a reasonable
doubt.' State v. Sumpter, 318 N.C. 102, 108,
347 S.E.2d 396, 399 (1986).
Id. In order to find defendant guilty of conspiracy to traffic in
cocaine, the state must prove that defendant entered into an
agreement to traffic in cocaine (for a specified amount), and
intended the agreement to be carried out at the time which it was
made. See State v. Valentine, 357 N.C. 512, 522, 591 S.E.2d 846,
855 (2003); State v. Diaz, 155 N.C. App. 307, 319, 575 S.E.2d 523,
531 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003);State v. Harris, 145 N.C. App. 570, 579, 551 S.E.2d 499, 504-05
(2001).
The essential element of conspiracy is that of the agreement.
Therefore, for the denial of defendant's motion to dismiss to be
proper, there must be evidence of an agreement which the jury could
find beyond a reasonable doubt. See Sams, 148 N.C. App. at 143-44,
557 S.E.2d at 641. Even in the light most favorable to the State,
and recognizing the inherent difficulty of proving conspiracy, I
cannot find substantial evidence that the defendant agreed to
traffic in cocaine.
There was no evidence presented as to whether defendant had a
previous relationship with Southerland or Meza, or even that he
knew them. Cf. Sams, 148 N.C. App. 141, 557 S.E.2d 638 (evidence
that defendant and drug dealer had worked together in the past to
facilitate cocaine sales was enough to support a denial of a motion
to dismiss a conspiracy charge). There was no evidence presented
that defendant even spoke with the other two men. Cf. State v.
Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991) (multiple prior
transactions and conversations between defendant and others
regarding the sale and delivery of cocaine was sufficient to
support an inference of a conspiracy); State v. Batchelor, 157 N.C.
App. 421, 579 S.E.2d 422 (informant testified to previous
conversations with defendant supporting inference of agreement),
disc. review denied, 357 N.C. 462, 586 S.E.2d 101 (2003); State v.
Diaz, 155 N.C. App. 307, 575 S.E.2d 523 (2002) (co-defendants had
multiple conversations with one another regarding the sale of
drugs), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003). There was no evidence presented as to how long the three men
had been in the truck before being stopped by police. There was no
evidence presented that defendant could see either the drugs in the
seat or the gun in the pocket of the door opposite him. Defendant
did not have drugs on his person, like Southerland did, nor did he
have possession of a large sum of money, like Meza did. Cf. State
v. Harris, 145 N.C. App. 570, 551 S.E.2d 499 (2001) (inference of
conspiracy where defendant was found with a large amount of money
on him and was sharing a hotel room with another person who had
drugs on him at the time of arrest).
The majority relies on Batchelor to assert that a conspiracy
may be inferred from the conduct of the other parties to the
conspiracy. Here, in order to infer conspiracy from the other
parties, the majority is stating that mere presence with others who
may be in agreement to bring about a certain result is substantial
evidence of an agreement with them. The Batchelor court did not go
that far, and I do not think this panel should either.
In Batchelor, evidence reviewed in the light most favorable to
the State showed that the defendant had agreed to sell drugs to a
confidential informant because the two set up a face-to-face
location for the buy. Batchelor, 157 N.C. App. at 427-28, 579
S.E.2d at 427. When the defendant came to the agreed-upon
location, he brought a passenger with him. Despite pat-down
searches, no drugs were recovered on either the defendant or his
passenger; yet, after placing the defendant and his passenger in
separate patrol cars, drugs were later found in the patrol car of
the passenger. Id. Evidence further showed that the passenger wasthe only person who could have placed the drugs in the car,
creating an inference that the drugs were on his person while he
was with the defendant. Id. That, plus the conversations with the
confidential informant in which the two agreed to a prearranged
meeting location was sufficient evidence to send a conspiracy
charge to the jury. Id.
Here, the evidence presented at trial, in congruence with
Batchelor, would support an inference of a conspiracy between Meza
and Southerland, who was later disposing of drugs while in custody,
but not between defendant and Meza or defendant and Southerland.
Defendant Batchelor had at least made several phone calls relating
to the sale of cocaine that, together with the conduct of his
passenger, would support an inference of conspiracy: upon arrival
at the location the only drugs apparently to sell were located on
the passenger. See State v. Valentine, 357 N.C. 512, 522, 591
S.E.2d 846, 855 (2003) (“[I]n establishing a criminal conspiracy,
direct proof is not required. . . . 'It may be, and generally is,
established by a number of indefinite acts, each of which, standing
alone, might have little weight, but, taken collectively, they
point unerringly to the existence of a conspiracy.'”(citations and
emphasis omitted)).
The only act proven on behalf of the defendant to show
agreement between he and Meza or Southerland was that of being in
the truck. Mere presence cannot stand as the only act linking a
defendant to a conspiracy. See
State v. Merrill, 138 N.C. App.
215, 221, 530 S.E.2d 608, 612 (2000)
(Upon evaluating the State's
argument that the conduct of others supported a jury question as toconspiracy the Court determined that “[m]ere passive cognizance of
the crime or acquiescence in the conduct of others will not suffice
to establish a conspiracy.”)
Conclusively, I would hold that when marshaled together there
was no evidence presented which could support a finding beyond a
reasonable doubt that defendant agreed with either Meza or
Southerland to traffic in cocaine. As such, I would reverse the
trial court's denial of defendant's motion to dismiss the charge of
conspiracy to traffic in cocaine, and, since defendant was only
convicted of this offense, I would vacate the trial court's
judgment against him. Accordingly, I would not reach defendant's
other assignments of error.
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