On 4 August 2003, the Wake County grand jury indicted
defendant on charges of trafficking in cocaine by selling and
delivering 28 grams or more but less than 200 grams of cocaine,
trafficking in cocaine by possessing 200 grams or more but less
than 400 grams of cocaine
, and conspiracy to traffic in cocaine by
possessing 200 grams or more but less than 400 grams of cocaine.
At trial, the State presented evidence tending to show the
following:
Anthony Stout (Stout) testified that he was arrested on 25
March 2003 after he sold two ounces of cocaine to an undercover
officer.
He stated that for approximately a year
he had made
weekly purchases of one to two ounces of cocaine
from Zulema Anida Eusebio (defendant) and Emilio Arsenio Miranda-Acevedo (Arsenio)
.
The purchases occurred either at Stout's workplace or the apartment
of defendant and Arsenio
. Both defendant and Arsenio were present
for most of the transactions
, and defendant would do the majority
of the talking and would act as an interpreter for Arsenio. Stout
stated that defendant had bartered most of the deals.
On
approximately four occasions, Stout made purchases
from only
defendant at his workplace. On some occasions when Stout made
purchases at the apartment, only defendant was present for the
transaction.
Following his arrest on 25 March 2003,
Stout agreed to
cooperate with officers in hopes of avoiding an active sentence for
the charges against him.
At the request of officers, Stout made
ten cocaine purchases from defendant and Arsenio
. On 15 May 2003,
Stout called defendant and Arsenio
to arrange for the purchase of
two ounces of cocaine. When he arrived at their apartment, both
defendant and Arsenio were there. Stout entered the kitchen, and
Arsenio removed eight ounces of cocaine from a cabinet and placed
it on the kitchen counter. Stout said defendant and Arsenio argued
with each other and with him regarding whether he owed them more
money. After paying for the cocaine, Stout left the apartment. He
said defendant was in the room during the entire transaction.
Later that same evening,
Sergeant Brad Kennon and at least
three detectives searched the apartment pursuant to a search
warrant. Sergeant Kennon testified that only defendant and Arsenio
lived in the apartment and that their personal belongings werethere. The officers found approximately six ounces of cocaine in
a paper bag on the kitchen counter during their search. After the
discovery of the cocaine in the kitchen, defendant indicated to
officers that she and Arsenio wanted to cooperate as a couple. She
spoke with Arsenio, and he placed several calls in an attempt to
have a delivery made to the apartment either from the man who was
the source of their cocaine or from other individuals. Because no
one would agree to deliver any cocaine to the apartment that
evening, Arsenio's calls were unsuccessful.
Sergeant Kevin Carswell testified that Stout was wearing a
transmitter when he conducted the transaction with defendant and
Arsenio on 15 May 2003. He heard Stout talking to defendant, and
he heard her interpreting in Spanish for a second individual.
Sergeant Carswell found passport or visa-type documents in the
apartment which identified defendant and her husband Arsenio.
Officers submitted the cocaine purchased by Stout and the cocaine
seized from the apartment to the Wake County Bureau of
Identification laboratory for testing. Agent Amy Bommer, a
forensic drug chemist, testified that the substance purchased by
Stout was 63.1 grams of cocaine and that the contraband seized by
officers during the search of the apartment was 147.2 grams of
cocaine.
Defendant testified through an interpreter that Arsenio was
her husband and that he had met with Stout on a number of
occasions. She denied interpreting for Arsenio when he met with
Stout. Defendant admitted going to Stout's workplace twice andbeing given a sealed envelope by Stout each time. She knew the
envelopes contained money, but Arsenio told her that the money was
for the purchase of fabric to upholster some furniture for Stout.
Defendant said she was unaware of any cocaine in their
apartment until police discovered it during the search of her
kitchen. During the course of her testimony, defendant initially
denied being in the apartment with Stout and Arsenio on 15 May
2003, explaining that she was waiting outside in a car for five to
ten minutes while Stout was speaking with Arsenio in the apartment.
She and Arsenio were going to go shopping. Defendant subsequently
testified she went into the apartment for two or three minutes to
use the bathroom and to rush Arsenio because she was concerned that
the store would close. She asserted that she did not speak
English, that she had never translated for her husband, and that
she had never put her hands on drugs.
After receiving the trial court's instructions, the jury
deliberated and found defendant guilty of all three charges. The
trial court consolidated the convictions for judgment and sentenced
defendant to a term of 70 to 84 months imprisonment. From the
trial court's judgment, defendant appeals.
Defendant contends the trial court erred by denying her motion
to dismiss the charge of conspiracy to traffic in cocaine by
possession. She argues there was no evidence that she conspired
with Arsenio to possess the cocaine.
Defendant asserts that the
evidence presented only shows she had knowledge of the existence of
the cocaine.
Her argument is without merit. When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to the
State; the State is entitled to every reasonable inference which
can be drawn from the evidence presented, and all contradictions
and discrepancies are resolved in the State's favor.
State v.
Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). If there
is substantial evidence that the charged offense was committed and
that the defendant committed the offense, a trial court should deny
a motion to dismiss and
submit the charge to the jury
.
State v.
McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
“
A criminal conspiracy is an agreement, express or implied,
between two or more persons to do an unlawful act . . . , and a
conspiracy generally is established by a number of indefinite acts,
which taken collectively point to the existence of a conspiracy.”
State v. Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283
(1998) (citations omitted).
In order to prove defendant guilty of
conspiracy to traffic in cocaine, the State must show that
defendant entered into an agreement with one or more persons to
traffic by possessing cocaine weighing at least 200 grams but less
than 400 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);
see also N.C.G.S. § 90-95(h)(3)(a) (2003)
.
The State was
not required to show an express agreement to traffic in order to
prove conspiracy, for “evidence tending to show a mutual, implied
understanding will suffice.”
State v. Morgan 329 N.C. 654, 658,406 S.E.2d 833, 835 (1991).
When the evidence is viewed in the light most favorable to the
State, defendant delivered cocaine to Stout at his workplace on two
occasions and collected payment for the cocaine. She translated
for Arsenio and bartered several of the transactions between
Arsenio and Stout. Defendant sold cocaine to Stout at the
apartment on occasions when Arsenio was not present. She was
standing next to Arsenio when he removed eight ounces of cocaine
from a cabinet in their kitchen and placed it on a counter
during
the transaction with Stout on 15 May 2003, and she translated for
Arsenio during that transaction with Stout. This
evidence was
sufficient for the trial court to submit the charge of conspiracy
to traffic in cocaine by possession to the jury. A reasonable
juror could infer from defendant's actions during the various
transactions with Stout that she had entered into an agreement with
Arsenio to traffic by possessing cocaine weighing at least 200
grams but less than 400 grams and that she intended the agreement
to be carried out at the time it was made. The trial court
therefore did not err by denying defendant's motion to dismiss the
conspiracy charge and by submitting the offense to the jury.
No error.
Judges MCGEE and HUDSON concur.
Report per Rule 30(e).
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