An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-499

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

STATE OF NORTH CAROLINA

v .                         Union County
                            Nos. 01 CRS 55096-97, 55102-03
SILVANO GUERRA DIAZ and         
ALBERTO AMADOR RAMIREZ,                    
    Defendants.

    Appeal by Defendants from convictions entered 8 August 2003 by Judge Preston Cornelius in Superior Court, Union County. Heard in the Court of Appeals 25 January 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett and Assistant Attorney General Patrick S. Wooten, for the State.

    Charlesena Elliott Walker and Leslie C. Rawls, for the defendant-appellants.

    WYNN, Judge.

    Defendants Silvano Guerra Diaz and Alberto Amador Ramirez appeal their convictions for trafficking in cocaine and conspiring to traffic in cocaine. Diaz and Ramirez contend that the trial court erred by denying their motions to dismiss because the State's evidence was insufficient to support a guilty verdict. Diaz also contends that the trial court erred by improperly instructing the jury on the conspiracy charge. Ramirez further contends that the trial court erred by allowing certain testimony into evidence. For the reasons stated herein, we uphold Defendants' convictions.
    A brief procedural and factual history of the instant appeal is as follows:     Marcus Massey, a confidential police informant,arranged a meeting with Glenda Barlett to purchase one kilogram of cocaine for $26,000.00. He was to meet Barlett at a Food Lion grocery store in Marshville, North Carolina on 26 November 2001. On that date Barlett, Liliana Aguiree, and Antonio De Lacruz drove in a brown truck to Cangor, North Carolina, where they met Ramirez. They then followed Ramirez to Robbins, North Carolina. In Robbins, they met Diaz, who was driving a black sedan. Barlett, Aguiree, and De Lacruz left Robbins in the brown truck and were followed by the black sedan, driven by Diaz and in which Ramirez had joined Diaz as a passenger.
    The parties arrived at the Food Lion in Marshville and exchanged vehicles. Barlett and Aguiree got into Diaz's sedan, and Ramirez told Bartlett, “it's under the seat.” Diaz, Ramirez, and De Lacruz then got in the brown truck. Barlett and Aguiree drove across the parking lot, where they met Massey. When Massey approached the car, Barlett told Aguiree to get the bag from under the seat. When Aguiree could not get the bag out, Massey got in the car and extracted the bag. The bag contained what appeared to be cocaine, and Massey gave a prearranged signal to Officer Mackey Goodman, and arrests of Barlett and Aguiree were initiated. Officer Goodman had been monitoring the scene in the Food Lion parking lot from an unmarked patrol car. He watched as Defendants exchanged vehicles with Barlett and Aguiree and saw Diaz, Ramirez, and De Lacruz leave the parking lot in the brown truck after they observed the police move in to arrest Barlett and Aguiree. Officer Goodman, as well as Massey, also saw that Barlett and Aguiree didnot carry anything into the black sedan when they exchanged cars.
    The bag Massey found under the passenger seat of the sedan contained 996.1 grams of cocaine. Barlett's day planner and three cell phones were seized from the pickup truck.
    Diaz and Ramirez were arrested and charged with Trafficking in Cocaine by Transportation, Trafficking in Cocaine by Possession, and Conspiracy to Traffic in Cocaine.   (See footnote 1)  They were tried jointly in August 2003 in Superior Court, Union County and convicted on all charges. Defendants appealed.

___________________________________________
    Defendants contend the trial court erred by denying their motions to dismiss because the State's evidence was insufficient to support a guilty verdict. When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, _ N.C. _, _, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166, 107 S. Ct. 241 (1986)). If we find that “substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion.” Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)(citing State v. Smith, 300 N.C. 71, 78, 265 S.E. 2d 164, 169 (1980)). “It is immaterial whether the substantial evidence is circumstantial or direct, or both.” State v. Diaz, 317 N.C. 545, 547, 346 S.E.2d 488, 490 (1986) (quotation omitted).
    To survive the motions to dismiss the charges of trafficking in cocaine by transportation and possession, there must be substantial evidence that Defendants “transport[ed], or possesse[ed 400] grams or more of cocaine[.]” N.C. Gen. Stat. § 90-95(h) (2003).
    To show transportation, “the State [must] show a 'substantial movement'” of the cocaine. State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996) (quoting State v. Greenidge, 102 N.C. App. 447, 451, 402 S.E.2d 639, 641 (1991)). Transportation is shown by evidence of carrying or movement of an illegal substance from one place to another. See, e.g., State v. McRae, 110 N.C. App. 643, 646, 430 S.E.2d 434, 436-37, disc. review denied, 334 N.C. 625, 435 S.E.2d 347 (1993) (finding transport where defendant removed cocaine from a dwelling house and carried it to a car by which he left the premises with an undercover agent); State v. Outlaw, 96 N.C. App. 192, 197, 385 S.E.2d 165, 168-69 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990) (holding that moving cocaine down a driveway was sufficient to constitute transport).
    To show possession, the State must provide substantial evidence that: (1) Defendants had actual possession; (2) Defendants had constructive possession; or (3) Defendants acted inconcert with another to commit the crime.   (See footnote 2)  State v. Reid, 151 N.C. App. 420, 428, 566 S.E.2d 186, 192 (2002); State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189 (1993). A person has actual possession of an illegal substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use. Reid, 151 N.C. App. at 428, 566 S.E.2d at 192. A person has constructive possession of an illegal substance when he has both the power and intent to control its disposition or use even though he does not have actual possession. Garcia, 111 N.C. App. at 640, 433 S.E.2d at 189 (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)). A rebuttable inference of constructive possession arises where a defendant was the custodian of a vehicle where drugs were found. State v. Tisdale, 153 N.C. App. 294, 297-98, 569 S.E.2d 680, 682 (2002); see also State v. Chandler, 100 N.C. App. 706, 711-12, 398 S.E.2d 337, 340 (1990) (finding possession properly inferred where cocaine was found underneath defendant's truck seat). A defendant acts in concert with another to commit a crime when he is present while a trafficking offenseoccurs and acts in concert with others to commit the offense pursuant to a common plan or purpose. Diaz, 317 N.C. at 547, 552, 346 S.E.2d 490, 493.
    Here, there was uncontested evidence, including testimony by Officer Goodman, Chris Stark, a chemist with the North Carolina Bureau of Investigation, and confidential informant Massey, that the amount of cocaine seized was well over the 400-gram statutory minimum needed for the charged trafficking offenses. See N.C. Gen. Stat. § 90-95(h).
    Moreover, there was substantial evidence that Defendants transported the cocaine by a carrying about or movement from one place to another: Ramirez met Barlett, Aguiree, and De Lacruz in Cangor. They then drove to Robbins, where they met up with Diaz. Ramirez joined Diaz in Diaz's car, and Diaz drove to the Marshville Food Lion. There, as Officer Goodman watched, Diaz and Ramirez switched cars with Barlett and Aguiree, whom Ramirez told “it's under the seat.” Viewing the evidence in the light most favorable to the State, substantial evidence existed as to the transport element of the trafficking charges.
    There was also substantial evidence that Defendant had constructive possession or acted in concert with another to traffic by possession: The cocaine was found in Diaz's car, which Diaz was driving. While Diaz exchanged cars with Barlett and Aquiree just prior to the sale to Massey, the record reflects that neither Barlett nor Aquiree brought anything into Diaz's car at the time of the exchange. Moreover, Ramirez told Aguiree that “it's under theseat.” When Barlett and Aguiree drove across the parking lot to conduct the sale with Massey, they retrieved the cocaine bag from underneath the passenger's seat of Diaz's car, where Ramirez had been seated. After the police arrived at the scene, Diaz and Ramirez, along with De Lacruz, attempted to drive away. Viewing the evidence in the light most favorable to the State, substantial evidence existed as to the possession element of the trafficking charges.
    In sum, there was substantial evidence as to all of the elements of the trafficking charges. The trial court therefore did not err in denying Defendants' motions to dismiss.
    To survive the motions to dismiss the charges of conspiracy, there must be substantial evidence of “'an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.'” State v. Batchelor, 157 N.C. App. 421, 427, 579 S.E.2d 422, 427 (2003) (quoting State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)); State v. Kemp, 153 N.C. App. 231, 235- 36, 569 S.E.2d 717, 720, disc. review denied, 356 N.C. 441, 573 S.E.2d 158 (2002) (same). An agreement “for the purposes of conspiracy may be inferred from the conduct of the parties. In fact, proof of a conspiracy may be . . . 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.” Batchelor, 157 N.C. App. at 427, 579 S.E.2d at 427 (quotations and citations omitted).
    There was substantial evidence that Diaz and Ramirez enteredinto an agreement to traffic in cocaine: Ramirez met Barlett, Aguiree, and De Lacruz in Cangor. They then drove to Robbins, where they met up with Diaz. Ramirez joined Diaz in Diaz's car, and they drove to the Marshville Food Lion. There, Diaz and Ramirez switched cars with Barlett and Aguiree. Ramirez told Aguiree that “it's under the seat.” Immediately after the exchange, Barlett and Aguiree drove across the parking lot to conduct the sale with Massey, and they retrieved the cocaine bag from underneath the passenger's seat of Diaz's car, where Ramirez had been seated. When the police approached the scene, Diaz and Ramirez, along with De Lacruz, attempted to drive away. Viewing the evidence in the light most favorable to the State, substantial evidence existed as to the conspiracy charges. See State v. Clark, 137 N.C. App. 90, 96, 527 S.E.2d 319, 322 (2000) (motion to dismiss conspiracy charge properly denied where no direct proof of an agreement existed but where defendant's and co-conspirator's behavior provided sufficient evidence of an agreement). The trial court therefore did not err in denying Defendants' motions to dismiss these charges.     
     Diaz further contends the trial court erred by improperly instructing the jury on the conspiracy charge.   (See footnote 3)  Specifically, Diazalleges that the trial court instructed the jury and provided the jury with a verdict form describing the conspiracy charge in the disjunctive as “Conspiring to Transport or Possess Cocaine in the amount greater than Four Hundred Grams.” Diaz alleges that the use of the disjunctive permitted the jury to convict him on either ground and thus deprived him of his right to a unanimous verdict.
    Our Supreme Court “has long held that the charge of conspiracy need not describe the subject crime with legal and technical accuracy, the charge being the crime of conspiracy and not the charge of committing the subject crime.” State v. McLamb, 313 N.C. 572, 578, 330 S.E.2d 476, 480 (1985) (citing State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947) and holding that a conspiracy verdict to “sell or deliver” constituted a unanimous conviction). The Supreme Court has “also held that a charge of conspiracy to commit any number of crimes charges only one offense.” Id. (citing State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951); State v. Shipman, 202 N.C. 518, 163 S.E.2d 657 (1932)). Because a conspiracy charge need not describe the subject crime with singularity or accuracy to allow for a unanimous, unambiguous conviction, we find no error with the trial court's instruction and verdict form here.
    Ramirez further contends that Aguiree's testimony that she was “scared [Defendants'] family might do something to me or myfamily[]” amounted to evidence of “inflammatory 'other crimes' or 'bad act' evidence” and was irrelevant and prejudicial. Ramirez cites primarily to two cases to support his argument: State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987), and State v. Ward, 93 N.C. App. 682, 379 S.E.2d 251 (1989). Bell and Ward are, however, inapplicable. While the witnesses in Bell and Ward expressed fear, the cause thereof was the respective defendants. Here, Aguiree expressed fear not of Ramirez but only of the Defendants' families. The statement was about neither Ramirez nor his prior acts, good, bad, or otherwise. Moreover, even if the statement was irrelevant, “the admission of [irrelevant] evidence is not reversible error unless it is of such a nature as to mislead the jury[,]” i.e., unless it was “material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983) (citing Brandis on North Carolina Evidence § 77 (2d ed. 1982) and State v. Billups, 301 N.C. 607, 272 S.E.2d 842 (1981)). The statement at issue here was not about Ramirez and did not prejudice Ramirez.
    For the foregoing reasons, we find no error and affirm Defendants' convictions.
    No error.
    Judge McGEE concurs.
    Judge TYSON concurs in a separate opinion.
    Report per Rule 30(e).
NO. COA04-499

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

STATE OF NORTH CAROLINA

v .                         Union County
                            Nos. 01 CRS 55096-97, 55102-03
SILVANO GUERRA DIAZ and         
ALBERTO AMADOR RAMIREZ,                    
    Defendants.

    TYSON, Judge, concurring in a separate opinion.

    I agree with the majority's holdings regarding the issues before us. I write separately to further address Diaz's assignment of error concerning the trial court's instruction to the jury on the charge of conspiracy.
    The trial court stated,
        if you find from the evidence and beyond a reasonable doubt . . . that Diaz agreed with one or more . . . persons . . . to commit the offense of trafficking in cocaine by possession or transporting more than four hundred grams or more of cocaine, and that the defendant and that person intended at the time the agreement was made that it would be carried out, it would be your duty to return a verdict of guilty.

(Emphasis supplied). Diaz asserts the trial court's use of the disjunctive, “or,” in charging the jury subjected him to the possibility of being convicted of conspiracy without an unanimous verdict. Diaz argues the jury could find him guilty of conspiracy based on possession or transportation of cocaine.

I. State v. McLamb
    Our Supreme Court addressed this specific issue in State v. McLamb, 313 N.C. 572, 330 S.E.2d 476 (1985). In McLamb, the defendant was charged with, among other crimes, conspiracy to sell or deliver a controlled substance. Id. at 577-78, 330 S.E.2d at 479-80 (emphasis supplied). The trial court instructed the jury on the conspiracy charge in the disjunctive, as at bar. Id. This Court “found reversible error in the submission of the verdicts to the jury . . . because [they] were in the disjunctive form and 'being inherently ambiguous, do not support the judgments.'” Id. at 577, 330 S.E.2d at 580 (citing State v. McLamb, 71 N.C. App. 220, 222, 321 S.E.2d 465, 467 (1984)).
    Our Supreme Court reversed this Court's holding, stating, “[t]his Court has long held that the charge of conspiracy need not describe the subject crime with legal and technical accuracy, the charge being the crime of conspiracy and not the charge of committing the subject crime.” McLamb, 313 N.C. at 578, 330 S.E.2d at 480 (citing State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947)). The Court in McLamb continued, “[w]e have also held that a charge of conspiracy to commit any number of crimes charges only one offense.” Id. (citations omitted).
    Here, the trial court instructed the jury on the charge of conspiracy based on the two subject crimes of trafficking in cocaine by possession or transportation. The common element in both underlying crimes is the intent to traffic cocaine, either through transporting or possessing 400 grams or more. See N.C. Gen. Stat. § 90-95(h)(3) (2003) (“Any person who sells,manufacturers, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of . . . 'trafficking in cocaine . . . .'”); see also McLamb, 313 N.C. at 579, 330 S.E.2d at 481 (“the indictment in this case charges defendant with one offense: conspiring to sell or deliver -- i.e. transfer -- cocaine”).
    In accordance with McLamb, the trial court properly instructed the jury on the charge of conspiracy.                


Footnote: 1
     Barlett, Aguiree, and DeLacruz were also arrested.
Footnote: 2
     Ramirez cites to State v. Baize, 71 N.C. App. 521, 323 S.E.2d 36 (1984) and State v. James, 81 N.C. App. 91, 344 S.E.2d 77 (1986), for the proposition that “the acting in concert theory is not generally applicable to possession offenses. . . .” Our Supreme Court, however, applied the “acting in concert” theory to trafficking by possession in Diaz. Diaz, 317 N.C. at 550-52, 346 S.E.2d at 493. The Supreme Court factually distinguished Baize and made clear that the acting in concert doctrine is permissible where “a defendant was present while a trafficking offense occurred and that he acted in concert with others to commit the offense pursuant to a common plan or purpose[.]” Id. (citing State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979)).
Footnote: 3
     Diaz also raises arguments in a brief he submitted on his own behalf. We address only the arguments set forth in the brief submitted by Diaz's counsel of record, as a party may not simultaneously proceed with counsel and also pro se. See, e.g., Hamlin v. Hamlin, 302 N.C. 478, 482, 276 S.E.2d 381, 384-85 (1981) (citing N.C. Gen. Stat. § 1-11; New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850 (1940); Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934) and stating that “aparty may appear either in person or by attorney in actions or proceedings in which he is represented. . . . [T]he right is alternative and [] a party has no right to 'appear' both by himself and by counsel.”).

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